Can Slapp Motion Denied Be Filed Again
M ORRIS & S TONE, LLP
Southern California'southward Premier Defamation Attorneys,
prosecuting and defending anti-SLAPP motions.
(714) 954-0700
What is a SLAPP adjust, and what is an anti-SLAPP move?
If yous are here, it is likely because you need more data about California'due south anti-SLAPP law, either because you need to bring such a motion, or pursued an action and at present must defend against an anti-SLAPP move. If so, the next few paragraphs will provide a expert summary of this complex expanse of the police force.
Allow's begin with the terminology. A S trategic 50 awsuit A gainst P ublic Participation ("SLAPP") is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the toll of a legal defense until they abandon their criticism or opposition. The uncomplicated fact is that unscrupulous parties sometimes use lawsuits as a means to intimidate parties into silence. Thus, a SLAPP conform is one where the plaintiff has filed a frivolous lawsuit, non actually seeking justice or damages, but to use the activeness to intimidate the defendant.
To exist a SLAPP, the lawsuit must incorporate "a cause of activeness against a person arising from any act of that person in furtherance of the person'due south right of petition or free speech nether the United States Constitution or the California Constitution in connection with a public issue." (CCP § 425.sixteen).
The action is frivolous because the typical plaintiff who brings a SLAPP accommodate does not care whether he wins the lawsuit, and often knows he has no chance of prevailing. The plaintiff's goals are achieved if the defendant succumbs to fear, intimidation, mounting legal costs or elementary exhaustion and abandons the criticism. As a bonus, if the SLAPP plaintiff tin garner observe in the media, or even among the defendant'south circumvolve, a SLAPP may also intimidate others from participating in the debate.
Notation that a SLAPP is an actual document (the lawsuit), not just beliefs designed to silence criticism. Every bit an example, if a city quango decided it did not like the political views of a local newspaper, and thus ordered all the newspaper racks removed from the metropolis, that conduct is clearly designed to "silence critics", but it is non a SLAPP because no lawsuit is involved.
The virtually recognizable SLAPP is a defamation action, where the speech involved is privileged. For example, under Civil Lawmaking section 47, a study to a police department is privileged. We can't accept a society where a criminal suspect can use a civil lawsuit every bit a means to intimidate a witness to a crime, and then nosotros give such reports privileged condition. Therefore if a criminal suspect sues a defendant for something he reported to the police, the lawsuit would be a SLAPP, and the defendant could file an anti-SLAPP move.
Some SLAPPs are blatant, but many are difficult to recognize, and that's why so many attorneys file SLAPP actions not realizing they are doing and so. Here are summaries of some of our recent SLAPP victories, to illustrate what makes a lawsuit a SLAPP.
"If You lot Sue Me, I'll Sue You!"
This case repeats itself over and over, with attorneys getting their clients into serious problems, all the while thinking they are being zealous advocates.
In this item case, our (future) client had entered into a settlement agreement with the defendant in a prior action. 2 years subsequently the settlement agreement was signed, the defendant had all the same not paid the damages to the plaintiff, and so he retained our firm to sue to collect the money due nether the understanding. You lot assault a SLAPP lawsuit with an anti-SLAPP motion (referred to as a "special move to strike"), which requires the person bringing the motility to evidence that the action is indeed a SLAPP, and if that is accomplished, the plaintiff (hither, the cross-complainant) must show that he is probable to prevail in the action. The Case of the Outraged City Quango Member In a recent example, for reasons we were never able to determine, a customer became very unhappy with our client, a computer software company. The client wrote an email to over 200 of our client's customers, making false claims most the software our customer had adult for him, as well as a number of other false claims about our client's business practices. Nosotros sued for defamation, seeking damages and an injunction to preclude the customer from continuing to publish the lies.
We filed an action for breach of contract (the settlement agreement). The defendant company answered the complaint, but its chaser made the terrible error of filing a cross-complaint, claiming that by filing the action, we had harmed the reputation of the company and disclosed the terms of the confidential understanding. The attorney, similar then many attorneys in these cases, had filed the cross-complaint hoping it would intimidate our client into dropping his lawsuit. A cantankerous-complaint can allege anything, so the defense attorney had alleged that by filing our lawsuit, nosotros had prevented investors from investing in the company, and that had cost the visitor millions. Practice you run across how that could be effective? Our customer was seeking a relatively small sum owed under the settlement agreement, but theoretically was facing millions of dollars in amercement if he continued with his action.
That cross-complaint was the quintessential SLAPP. The defendant company was not really suing for money, and knew it could never prove that the filing of a lawsuit had toll information technology millions, merely information technology hoped that the threat of the possibility would persuade our client to surrender his "right of redress". The accused was suing our client for suing, and that is a SLAPP.
Not every lawsuit that seeks to silence oral communication is a SLAPP. On the other end of the scale are the defendants and their attorneys (and, sadly, some judges) who don't understand the point of the anti-SLAPP statutes and think that every action that seeks to silence oral communication is a SLAPP. California's anti-SLAPP law does non in whatever mode seek to protect defamatory speech. The case police force is very clear that defamatory speech is never protected.
The constabulary firm representing the customer sought to dispose of an action by fashion of an anti-SLAPP motion, claiming the lawsuit was a SLAPP since information technology sought to silence the customer's costless speech. We easily defeated the motion, because the lawsuit was not a SLAPP. The fact that it seeks ultimately to "silence" the defendant from repeating his defamatory comments does non make the lawsuit a SLAPP considering, again, defamatory spoken communication is never protected. At trial, we won over $1.5 one thousand thousand for our client for the defamation.
The anti-SLAPP law and how it is applied.
There is currently no Federal anti-SLAPP constabulary, but approximately 30 states have enacted such legislation. California has a unique variant of anti-SLAPP legislation which has led to a meaning volume of anti-SLAPP litigation in this state. California is truly the anti-SLAPP capitol. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone, with just 341 case spread amidst the residue of the states with anti-SLAPP statutes. More than than 300 published courtroom opinions have interpreted and practical California's anti-SLAPP law.
California's anti-SLAPP law is contained in Code of Civil Process § 425.sixteen, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. Although called a "special motility to strike", the anti-SLAPP motion is very different from a standard motion to strike. An anti-SLAPP move is a complicated hybrid of a number of motions, including aspects of demurrers and motions for summary judgment, with a dash of injunctive relief thrown in. When a accused is served with a lawsuit the accused asserts is designed to improperly silence his speech or hinder his right to seek redress, he has the option of filing an anti-SLAPP motility in the get-go 60 days after service (although the court can extend this deadline on a showing of good cause).
Nearly attorneys who don't practice in this area of the law do non realize that the 60 days begins from the filing of the most recent complaint. We recently establish ourselves defending our client against an activity that certainly appeared to be a SLAPP, but the allegations in the complaint were so poorly stated that we were not confident that the court could be made to understand that the plaintiff was suing to stop our client'south right of redress. Nosotros demurred twice to the complaint, forcing the plaintiff to better set up along the basis for his arrange. When he filed his second amended complaint -- more than six months afterwards the activity was initially filed -- the allegations were finally clear enough that we could dispose of the entire case by way of an anti-SLAPP move.
Once filed, the special motion to strike stays any discovery. This advances the purpose of the underlying statute, which is intended to relieve defendants from spurious defamation actions, but at the same time it tin frustrate the plaintiff with a legitimate claim, who now must show a reasonable likelihood of success in the activeness, with his hands tied by the discovery stay. (The plaintiff can ask the courtroom for permission to conduct limited discovery on a showing of good crusade.)
The three important anti-SLAPP statutes are set forth hither, but the center of legislation is fix forth in subpart (east) of Lawmaking of Civil Prodecure department 425.sixteen, which provides:
(e) As used in this section, "human action in furtherance of a person's right of petition or free speech communication under the United States or California Constitution in connection with a public issue" includes:
(1) whatever written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(two) any written or oral argument or writing made in connexion with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing fabricated in a place open to the public or a public forum in connection with an effect of public involvement;
(4) or whatever other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech communication in connectedness with a public issue or an issue of public interest.
The Two-Prong Exam for Every Anti-SLAPP motility.
To win an anti-SLAPP motion, the defendant must first evidence that the voice communication in question falls nether one of the four sections set along above. But that is merely the first prong of the analysis. Fifty-fifty if the defendant proves the speech was protected under the anti-SLAPP statute, the special motion to strike will exist denied if plaintiff can show that he is still likely to prevail on the activeness. In other words, defamatory speech is non protected merely because it falls nether one of the four sections. (Keeping in heed that speech is not defamatory if it is privileged.) If the plaintiff can brand a prima facie showing that he was defamed, for example, the action will still proceed.
The least articulate of the four sections, and the department that leads to the most contentious anti-SLAPP disputes, is section iv. Department 4 is a grab-all, seeking to protect " . . . the constitutional right of free voice communication in connection with a public issue or an event of public interest." If you are not certain what constitutes an "event of public interest" y'all are not solitary. These are the words from the statute that are giving the courts the nearly problem.
Aforementioned facts, dissimilar results.
Here is a typical scenario to illustrate the bespeak. A person goes to a doctor and is very displeased with the style the physician handles the engagement. The patient goes abode and goes to Vitals.com, where he can mail a review of the doctor. He posts that the doctor is a dishonest, who should lose his license. The physician sees the mail and sues the patient for defamation.
Can the patient successfully bring an anti-SLAPP motion? Is the doctor's performance a matter of "public interest"? About courts take constitute that a doctor's performance is ane of public involvement, but some look at the forum and the number of people involved. Some hold that the public's interest in this ane doctor is non broad enough to be a thing of public interest, and would deny the anti-SLAPP move on that ground, never reaching the 2d prong. Others hold that a doctor's functioning, discussed on this website specifically intended to provide a forum for patients to discuss doctors, would institute a affair of public interest, and would observe that defendant has met the beginning prong, leaving information technology to plaintiff to prove a likelihood of success. On that ground, the fact that the doctor was chosen a quack would likely be found to be simply colorful hyperbole and not defamatory.
Aforementioned facts, two different results, all based on whether the court found the statements to be a matter of public interest. Frankly, the procedural requirements of section 425.16, its interaction with other statutes such as Civil Code 47 (the statute defining what is privileged speech) and the latest definition of "public involvement", which changes from week to calendar week, are often far too challenging for a trial courtroom gauge to decipher in the limited time he or she has to consider an anti-SLAPP move.
And a bad determination by the gauge can be devastating to the defendant or plaintiff. If the special motion is denied, the club denying the move is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent entreatment) are entitled to a mandatory award of reasonable attorney'southward fees. Subsequently an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending or dismissing the complaint. Unscrupulous attorneys view anti-SLAPP motions equally lottery tickets. If they lose, there is no impairment since the attorney fees catamenia merely 1 management. A accused who prevails on an anti-SLAPP motion is entitled to recover his attorney fees, but a plaintiff who defeats an anti-SLAPP move does not recover his fees unless he tin can show the movement was completely frivolous. And so, if the motion is won, these unethical attorneys submit ridiculous invoices for the attorney fees, sometimes exceeding $100,000 for a unmarried motion! Sadly, some judges rubber-stamp these fee applications, which then only emboldens these attorneys to behave in the aforementioned way with time to come motions. Aaron Morris is often retained as an adept to fight these inflated applications. Every case is different and may finish with a unlike upshot, simply to date in each case where Aaron Morris has been retained to offer expert testimony on fee applications, those fees have been significantly reduced.
Consult with an experienced attorney earlier venturing into the anti-SLAPP minefield.
Every bit you can see, an anti-SLAPP motion can be a plush minefield if the guess fails to fully understand the law. If y'all are going to enter that minefield, y'all demand an attorney who is a recognized practiced in this field. Yous need Aaron Morris from Morris & Stone, attorneys whose master area of practice is defamation (slander and libel) and the accompanying anti-SLAPP motions.
Phone call Morris & Rock for a free telephone consultation at (714) 954-0700.
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-- Orange Canton Superior Court Judge Robert J. Polis (Ret.), commenting on the performance of counsel from Morris & Stone.--------------------------------------- "Aaron Morris is one hell of a good attorney."-- J.C. (Counsel for Banking company of America, addressing the court, after losing to Aaron Morris in Los Angeles Superior Court)
More Information Near SLAPP Law and Anti-SLAPP Motions
For news about the latest anti-SLAPP cases, visit our weblog, California SLAPP Law. Here are the latest articles and podcasts:
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